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HomeMy WebLinkAbout2005 10 10 Regular 506 CITY COMMISSION ITEM 506 Consent Information Public Hearin2 Re2ular X MGR. ~PT Authorization October 10. 2005 Meeting REQUEST: The Community Development Department- Planning Division requests that the Commission review the conceptual plan and development agreement for the JDC Town Center Building 17. PURPOSE: The developer has requested the City Commission review and approve the attached concept plan and development agreement for the purpose of granting development rights for 26 condominium units and 41 parking spaces in accordance with the attached concept plan and development agreement, subject to staffand City Commission approval of the final engineering documents and in accordance with the conditions contained within the development agreement. APPLICABLE LAW AND PUBLIC POLICY: Chapter 9 of the City Code Sections 20-320 through 20-327 of the City Code. CHRONOLOGY: January 24, 2005 - City Commission approved final engineering plans for 2 acre portion at the NW corner ofthe existing 14+ acre Doran site. March 15, 2005 - Pre-construction meeting held for the 2 acre portion ofthe 14+ acre site April 25, 2005 - City Commission approved revised final engineering plans (removed big oak) June 13, 2005 - City Commission approved Building 16 elevations (except trellis and/or colonnade at W or SW end ofbuilding) August 22, 2005 - City Commission postponed Building 1 7 concept review September 12, 2005 - City Commission approved the concept plan for Building 17 CONSIDERATIONS: Overview: Subsection 20-321 (b) (1) of the [Town Center] Code states that the City Commission (in its capacity as the development review committee for developments with in the Town Center) "shall have authority within reason for approving all aspects of site planning and exterior architecture, including aesthetic appropriateness.. . and other site specific matters not delineated herein." October 10, 2005 Regular Agenda Item 506 Page 2 of3 The applicant has requested that the City Commission review and approve the attached concept plan and development agreement for the purpose of granting development rights for 26 condominium units and 41 parking spaces in accordance with the attached concept plan and development agreement, subject to staff and City Commission approval of the final engineering documents and in accordance with the conditions contained within the development agreement. STAFF RECOMMENDATION: Staff recommends that the City Commission consider the attached conceptual plan and development agreement. A TT ACHMENTS: A Concept Plan B Draft Development Agreement C September 12, 2005 City Commission Minutes COMMISSION ACTION: 2 ATTACHMENT A ATTACHMENT B THIS INSTRUMENT WAS PREPARED BY Anthony Garganese City Attorney of Winter Springs Brown Garganese, Weiss & D'Agresta, P.A. 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407) 425-9566 Draft: 10/7/2005 FOR RECORDING DEPARTMENT USE ONLY BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT (the "Agreement") is made and executed this day of , 2005, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and JDC CALHOUN, INe., a Georgia Corporation ("Developer"), whose address is 216 Seven Farms Drive, Suite 200, Charleston, S 29492. WIT N E SSE T H: WHEREAS, Developer is the fee simple owner of certain real property generally located within the City of Winter Springs Town Center west of Tuscawilla Road, north of State Road 434, and south of Blumberg Boulevard and currently subject to a binding development agreement with the City which is recorded in O.R. Book , Page (the "Phase I Property"); and WHEREAS, Developer is currently completing Phase I of a development project on the Phase I Property; and WHEREAS, as part of Phase I, Developer desires to purchase an additional .43 acres of real property from Mr. & Mrs. Kingsbury which lies adjacent to the Phase I Property along Blumberg Boulevard as legally described in Exhibit "A" which is hereby fully incorporated herein by this reference (the "Kingsbury Property"); and WHEREAS, Developer desires to incorporate the Kingsbury Property into the phase I project site for purposes of constructing a twenty-six (26) unit residential condominium project; and WHEREAS, if Developer acquires the Kingsbury Property, Developer will aggregate that property with other adjacent property owned by Developer for purposes of creating a buildable lot under the City Code; and WHEREAS, Developer desires certain limited assurances from the City before they fmalize the closing on the Kingsbury Property as more specifically set forth under this Agreement; and WHEREAS, the City and Developer desire to set forth the following special terms and conditions with respect to the development of the Property; and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2. Authoritv. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. follows: Oblie:ations and Commitments. The City and Developer hereby agree as (a) Kine:sburv Property. Developer shall use its best efforts to purchase the Kingsbury Property. If Developer acquires the Kingsbury Property, the Kingsbury Property shall be aggregated and combined with a portion of adjacent property currently owned by the Developer along Blumberg Boulevard (the "Building 17 Site"). The purposes of purchasing the Kingsbury Property shall be to create a buildable lot as generally depicted on the Concept Plan. Developer agrees to create the Building 17 Site in accordance with the requirements of the City Code and within sixty (60) days of closing on the Kingsbury Property. (b) Approval of Concept Plan. The City agrees that the Developer shall have the right to design, permit and construct a four story, twenty-six (26) unit, residential condominium project on the Building 17 Site in accordance with the concept plan attached hereto and fully incorporated herein as Exhibit "B" (the "Concept Plan"); provided, however, Developer shall have the obligation to further submit and obtain the City's approval of a final site plan and fmal engineering plans. Developer shall also have the obligation to construct aesthetic enhancements to the project as may be reasonably requested by the City in accordance with the City Code, particularly the City's aesthetic review ordinance. Developer acknowledges and agrees that the Concept Plan was not prepared with specific fmal surveyed dimensions and that during the final site plan and final engineering process such dimensions shall be surveyed, duly engineered, and provided to the City. As such, Developer and the City agree that the Concept Plan is intended to be conceptual in nature and subject to reasonable adjustments at the final site plan and fmal engineering phase in order to bring the project into compliance with the City Code. The condominium project shall consist of four (4) three bedroom units and twenty-two (22) two bedroom units unless otherwise mutually agreed to by the parties. (c) Parkine:. The City hereby acknowledges and agrees that a minimum of forty-one (41) parking spaces, including handicapped spaces, shall be acceptable for the twenty-six unit residential condominium project proposed in subparagraph (b) above. Developer's Agreement City of Winter Springs and IDC Calhoun, Inc. - 2- 4. Representations of the Parties. The City and Developer hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance ofthis Agreement. This Agreement will, when duly executed and delivered by the City and Developer and recorded in the Public Records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against the parties hereto and the Property in accordance with the terms and conditions of this Agreement. 5. Successors and Assi2lls. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Developer and their respective successors and assigns. The terms and conditions of this Agreement similarly shall be binding upon the Property and shall run with title to the same. 6. Applicable Law. This Agreement shall be governed by and construed III accordance with the laws of the State of Florida. 7. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Commission. 8. Entire A2reement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Developer as to the subject matter hereof. 9. Severabilitv. If any provision of this Agreement shall beheld to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 10. Effective Date: Termination. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto. However, the development rights set forth herein shall only become effective at such time that the Developer closes on the Kingsbury Property. If Developer fails to purchase the Kingsbury Property within six (6) months of the City Commission approving this Agreement, this Agreement shall automatically terminate and the parties shall no longer have any rights hereunder. 11. Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida. For purposes of recording this Agreement, a legal description of the Building 17 Site shall be provided by the Developer when said site is created pursuant to City Code and attached to this Agreement in order to adequately represent the real property that is subject to this Agreement. 12. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Developer is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner, which would indicate any such relationship with the other. Developer's Agreement City of Winter Springs and JDC Calhoun, Inc. - 3 - 13. Soverei2l1 Immunitv. Nothing contained in this Agreement shall be construed as a waiver ofthe City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under the state and federal law. 14. City's Police Power. Developer agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 15. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. 16. Third-Party Ri2hts. This Agreement is not a third-party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 17. Specific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by a suit in equity. 18. Attornev's Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. 19. Development Permits. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Agreement. The failure of this Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Developer or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Developer is in breach of any term and condition of this Agreement. [SIGNATURES FOLLOW ON NEXT PAGE] Developer's Agreement City of Winter Springs and JDC Calhoun, Inc. - 4- IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS ATTEST: By: John F. Bush, Mayor By: Andrea Lorenzo Luaces, City Clerk APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. CITY SEAL Dated: By: Anthony Garganese, City Attorney for the City of Winter Springs, Florida Developer's Agreement City of Winter Springs and IDC CalhoWl, Inc. - 5 - Signed, sealed and delivered in the presence of the following witnesses: JDC Calhoun, Inc., a Georgia Corporation Signature of Witness By: Shane Doran Its President Printed Name of Witness Signature of Witness Printed Name of Witness STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 2005, by Shane Doran, as President of JDC CALHOUN, INC., a Georgia Corporation, on behalf of said corporation. He is personally known to me or produced as identification. (NOTARY SEAL) (Notary Public Signature) (Print Name) Notary Public, State of Commission No.: My Commission Expires: Developer's Agreement City of Winter Springs and me Calhoun, Inc. - 6- EXHIBIT "A" Legal Description Kingsbury Property LEGAL DESCRIPTION (KINGSBtJRY SPUT) (PREPARED BY LOCHRANE) A PORTION OF THE NORTH 2.09.00 FEET OF THE EAST 358.00 FEET OF BLOCK liB" THAT IS ON THE EAST SlOE OF OVIEDO-SANFORD ROAD (A.K.A. STATE ROAC 434), ON THE WEST SIDE OF BRANTLEY AVENUE (A.K.A. TUSKAWILLA ROAD), ON THE SOUTH SIDE OF PLATTED ROAD (A.K.A. FIRST STREETJ OF D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP, ACCORDING TO THE PLAT THEREOF RECQRf)E;D. IN PLAT BOOK I, PAGE 5, OF THE fflBliC RECORDS OF SElllNOLE COUNTY, FLORIDA. ALL .~~ MORE PARTlCtfLARLY AS FOLLOWS: COMMENcE AT THE NORTHEAST CORNER OF BLOCK "B", D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP, AS RECORDED IN PLAT BOOK I, PAGE 5, fflBUC RECORDS OF SEMINOLE COUNTY,F41JRIDA, SAID POINT ALSO BEING THE INTERSECTION OF THE SOUTH RIGHT OF WAY liNE OF P1:ATTED ROAD (A.K.A. FIRST STREET) AND BRANTLEY AVENUE (A.K.A. TUSKAWILLA ROAD) OF SAID D.R. MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP: THENCE RUN mr23'56" W, ALONG SAID SOUTH RIGHT OF WAY liNE OF PLATTED ROAD (A.K.A. FIRST STREET) AND THE NORTH liNE OF BLOCK "B", A DISTANCE OF 358.00 FEET FOR THE POINT OF BEGINNING: THENCE DEPARTING AFORESAID SOUTH RIGHT OF WAY UNE AND THE NORTH liNE OF BLOCK liB" RUN S30W'58"W A DISTANCE OF 208.94 FEET,. THENCE RUN S7r23'51"E A DISTANCE OF 1/2.34', THENCE RUN Nl8.36'09"E A DISTANCE OF 204.76 FEET TO A POINT ON THE AFOREMENTIONED SOUTH RIGHT OF WAY UNE AND THE NORTH liNE OF BLOCK "B", THENCE RUN Nlr23'56"W ALONG SAID SOUTH RIGHT OF WAY UNE AND THE NORTH UNE OF BLOCK "B" A DISTANCE OF 70.75 FEET TO THE POINT OF BEGINNING. CONTAINING O.4JQ ACRES, (18,745 SQUARE FEET J, /lORE OR LESS. ~~l .t".Z"i ~ . ... L , Ill~l41 (0~t't~ _, .' !i Ii i """ L.I/l ......J.:....," t > qlq\tl~~~:"",,~-! -- '.......,' "", "'''-... ~ ~ ~ ~ "'-.. ~"-.."'. "'., ! / A TT ACHMENT C WINTER SPRINGS, FLORIDA MINUTES CITY COMMISSION REGULAR MEETING - SEPTEMBER 12,2005 PAGE 26 OF 44 Manager McLemore said, "My question to you is to - both parties here, do they need to come back for this review again or can they go ahead with this direction from you and go to their final drawings?" Commissioner McGinnis stated, "Yes." Commissioner Krebs remarked, "Yes, and a blessing from Victor Dover." Manager McLemore said, "Right." No objections were voiced. Mayor Bush pointed out, "So, you do not need to come back for Aesthetic Review - on the Balcony issue." Mr. Tullos commented that "We said we would do ten (10), I didn't think we had a disparity in the elevation." Manager McLemore stated, "Okay - they're giving you the option to bring it back if you want to, with those elevations." Mayor Bush remarked, "So with that caveat, it has passed the Aesthetic Review. Commissioners, you would agree?" No objections were noted. Mayor Bush opened the "Public Input" portion of the Agenda Item. No one spoke. Mayor Bush closed the "Public Input" portion of the Agenda Item. ~.... . . , . . . . ~ . . . _......:... . PUBLIC HEARINGS 411. Community Development Department - Planning Division Requests That The Commission Hold A Public Hearing For The Conceptual Review Of The IDC Town Center Building 17. This Agenda Item was presented for discussion by Mr. Baker. Commissioner Gilmore remarked, "We have no Site Plans; nothing was handed to us. I don't know how many times we have asked for a Site Plan of the entire Town Center." Commissioner Gilmore added, "I don't even think we should be looking at this building without all of the information available to us ahead of time, rather than sitting here and doing this on a map that is up here on the wall or a drawing. It means nothing to me. I look at this and I don't see where this is in relation to Tuskawilla Road, Lake Jesup, [State Road] 434 or anything else." Commissioner Gilmore added, "We go through this every time and it makes life difficult for us and we have talked about it, and we are back doing the same thing again, tonight. We need this stuff to study it." Commissioner Gilmore then noted, "Where is the parking? I didn't see anything in here." All I see is that drawing and a floor plan - we should be getting more information." CITY OF WINTER SPRINGS, FLORIDA MINUTES CITY COMMISSION REGULAR MEETING - SEPTEMBER 12, 2005 PAGE 27 OF 44 Deputy Mayor Blake asked, "There is nothing above those planters?" Mr. Travis stated, "There is nothing above the planters." Furthermore, Mr. Travis said, "To go back to talk about variation of balconies - this is the balcony that will extend out so you have that on the first floor. You will have an uncovered balcony area on the second floor and then as you go up in the building, it becomes less in dimension. There is a large balcony on that comer; there is a different variation of balcony on that comer; and as you will see on the second floor of this balcony, it actually has an inset balcony and then the comer within the same unit has that Juliette balcony. So you actually get two (2) balconies within that one (1) unit." Discussion. Parking was discussed next, to which Mr. Brian Fields, P.E., City Engineer, Public Works Department stated, "At this time, we still don't feel very confident that there is adequate parking, even under the shared concept to serve both buildings 17 and 4, at least in terms of residential components." Mayor Bush said, "If Staff doesn't think it is enough, I guarantee you the Commission won't think it is enough. Staff, have you told them that - there is no way it is going to fly?" Mr. Tullos stated, "They have not told us there's no way it is going to fly." Manager McLemore suggested to the City Commission, "Give them your comments so that when they come back with a - final Conceptual review in this case, they can incorporate those comments and move this thing along." Commissioner Gilmore said, "When you come back, I have questions as to how this residential unit fits in to the - concept of the Town Center; what it does in terms of commercial space versus residential space." Tape 4/Side B Furthermore, Commissioner Gilmore said, "When we come back that we have the full Conceptual Town Center drawings showing both housing, commercial space and all of that." Discussion. Mayor Bush opened the "Public Input" portion of the Agenda Item. No one spoke. Mayor Bush closed the "Public Input" portion of the Agenda Item. CITY OF WINTER SPRINGS, FLORIDA MINUTES CITY COMMISSION REGULAR MEETING - SEPTEMBER 12,2005 PAGE 28 OF 44 Commissioner Miller suggested, "1 think the City Manager, if we can get a Consensus - he needs to bring back this information that he has mentioned four (4) or five (5) times now - Charette, Charette, Charette. 1 keep hearing it; and it is in the Town Plan and you can go in and look at it. The criticism 1 have of that document right now is that it is obsolete, and 1 would like to see an upgraded one and - developed maybe by Victor Dover or somebody that actually shows the development on all four (4) comers of Tuskawilla - [Road] and [State Road] 434." Commissioner Gilmore added, "The whole Town Center should be on one (1) disc." Mayor Bush asked the City Commission, "Commissioner Miller has asked for a Consensus on this which is providing a more comprehensive view?" Commissioner McGinnis said, "That is fine." Commissioner Krebs remarked, "Yes." With no objections, Mayor Bush said to Manager McLemore, "Can we do that Mr. McLemore?" Manager McLemore responded, "That is not a problem." Commissioner McGinnis noted, "We call this our Town Center. We should always say Phase 1. There should be a sign out there - Winter Springs Town Center Phase 1." Commissioner McGinnis added, "Maybe we need to put a Phase 1 sign out there; or now it is going to be Phase II." Manager McLemore stated, "As far as showing you the street layout, and then what has been approved, how that should fit on that layout, we can do all that, that is not the problem. That's easy. We can do all of that. We just can't tell you what the buildings are going to look like, nor what the uses are going to be in them." Commissioner Krebs remarked, "My comment - going by Staff recommendations and wanting our comments, what 1 would be looking at would be the parking - and the shared space and what - commercial properties we would be sharing space with. My concern is parking." "MOTION TO EXTEND - AN HOUR." MOTION BY COMMISSIONER KREBS. SECONDED BY COMMISSIONER MILLER. DISCUSSION. VOTE: COMMISSIONER KREBS: AYE COMMISSIONER GILMORE: AYE COMMISSIONER MILLER: AYE COMMISSIONER McGINNIS: AYE DEPUTY MAYOR BLAKE: AYE MOTION CARRIED. Manager McLemore said, "They have heard your basic comment on the buildings, on the parking challenge in front of them and I think these other issues you were saying incorporate into a Final Site Plan." Mayor Bush said, "Commissioners, do you agree with the Manager's analysis? Everybody in agreement with that? Can we have a Motion to agree?" CITY OF WINTER SPRINGS, FLORIDA MINUTES CITY COMMISSION REGULAR MEETING - SEPTEMBER 12,2005 PAGE 29 OF 44 MOTION. SECONDED BY COMMISSIONER KREBS. DISCUSSION. VOTE: COMMISSIONER McGINNIS: AYE DEPUTY MAYOR BLAKE: AYE COMMISSIONER MILLER: AYE COMMISSIONER KREBS: AYE COMMISSIONER GILMORE: AYE MOTION CARRIED. Brief discussion. .:. .:. AGENDA NOTE: THE FOLLOWING PUBLIC HEARINGS AGENDA ITEMS WERE DISCUSSED NEXT, IN THE ORDER AS DOCUMENTED. .:..:. PUBLIC HEARINGS PUBLIC HEARINGS 414. Office Of The City Attorney ADD-ON Requests The Commission Consider And Adopt Ordinance 2005-28 On Second And Final Reading, Which Proposes To Adopt A New Ten (10) Year Cable Franchise Agreement With Bright House Networks, LLC. Attorney Garganese read the Ordinance by "Title" only. Mayor Bush opened the "Public Input" portion of the Agenda Item. No one spoke. Mayor Bush closed the "Public Input" portion of the Agenda Item. "MOTION TO APPROVE." MOTION BY COMMISSIONER KREBS. SECONDED BY COMMISSIONER McGINNIS. DISCUSSION VOTE: DEPUTY MAYOR BLAKE: AYE COMMISSIONER MILLER: AYE COMMISSIONER KREBS: AYE COMMISSIONER McGINNIS: AYE COMMISSIONER GILMORE: AYE MOTION CARRIED. THIS INSTRUMENT WAS PREPARED BY AND RETURN TO: Anthony Garganese City Attorney of Winter Springs , Brown Garganese, Weiss & D' Agresta, P.A. r 225 E. Robinson St., Suite 660 Orlando, FL 32801 (407) 425-9566 ,~qqnmn.mH..I.m".D"~lmIU MARYANNE MORSE, CLERK OF CIRCUIT COURT SEMINOLE CQTY BK 05981 PGS 1497-1504 CLERK'S # 2005191578 RECORDED 11104/200S 11140: 35 AM RECORDING FEES 69.50 RECORDED BY D Tholas FOR RECORDING DEPARTMENT tJSE ONLY BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT (the "Agreement") is made and executed this 25th day of October, 2005, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (the "City"), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and CAPITAL GREEN, LLC., a Georgia Limited Liability Company ("Developer"), whose address is 216 Seven Farms Drive, Suite 200, Charleston, S 29492. WITNESSETH: WHEREAS, Developer is the fee simple owner of certain real property generally located within the City of Winter Springs Town Center west of Tuscawilla Road, north of State Road 434, and south of Blumberg Boulevard and currently subject to a binding development agreement between JDC Calhoun, Inc. and the City, dated August 1,2000, and on file at Winter Springs City Hall (the "Phase I Property"); and WHEREAS, Developer is currently completing Phase I of a development project on the Phase I Property; and WHEREAS, as part of Phase I, Developer desires to purchase an additional .43 acres of real property from Mr. & Mrs. Kingsbury which lies adjacent to the Phase I Property along Blumberg Boulevard as legally described in Exhibit "A" which is hereby fully incorporated herein by this reference (the "Kingsbury Property"); and WHEREAS, Developer desires to incorporate the Kingsbury Property into the phase I project site for purposes of constructing a twenty-six (26) unit residential condominium project; and WHEREAS, if Developer acquires the Kingsbury Property, Developer will aggregate that property with other adjacent property owned by Developer for purposes of creating a buildable lot under the City Code; and WHEREAS, Developer desires certain limited assurances from the City before they finalize the closing on the Kingsbury Property as more specifically set forth under this Agreement; and WHEREAS, the City and Developer desire to set forth the following special terms and conditions with respect to the development of the Property; and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. 2. Authoritv. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3. follows: Oblieations and Commitments. The City and Developer hereby agree as (a) Kinesburv Prooertv. Developer shall use its best efforts to purchase the Kingsbury Property. If Developer acquires the Kingsbury Property, the Kingsbury Property shall be aggregated and combined with a portion of adjacent property currently owned by the Developer along Blumberg Boulevard (the "Building 17 Site"). The purposes of purchasing the Kingsbury Property shall be to create a buildable lot as generally depicted on the Concept Plan. Developer agrees to create the Building 17 Site in accordance with the requirements of the City Code and within sixty (60) days of closing on the Kingsbury Property. (b) Aooroval of Conceot Plan. The City agrees that the Developer shall have the right to design, permit and construct a four story, twenty-six (26) unit, residential condominium project on the Building 17 Site in accordance with the concept plan attached hereto and fully incorporated herein as Exhibit "B" (the "Concept Plan"); provided, however, Developer shall have the obligation to further submit and obtain the City's approval of a final site plan and final engineering plans. Developer shall also have the obligation to construct aesthetic enhancements to the project as may be reasonably requested by the City in accordance with the City Code, particularly the City's aesthetic review ordinance. Developer acknowledges and agrees that the Concept Plan was not prepared with specific final surveyed dimensions and that during the final site plan and final engineering process such dimensions shall be surveyed, duly engineered, and provided to the City. As such, Developer and the City agree that the Concept Plan is intended to be conceptual in nature and subject to reasonable adjustments at the final site plan and final engineering phase in order to bring the project into compliance with the City Code. The condominium project shall consist of four (4) three bedroom units and twenty-two (22) two bedroom units unless otherwise mutually agreed to by the parties. ( c) Parkine. The City hereby acknowledges and agrees that a minimum of forty-one (41) parking spaces, including handicapped spaces, shall be acceptable for the twenty-six unit residential condominium project proposed in subparagraph (b) above. Developer's Agreement City of Winter Springs and Capital Green I, LLC -2- 4. Representations of the Parties. The City and Developer hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will, when duly executed and delivered by the City and Developer ,constitute a legal, valid and binding obligation enforceable against the parties hereto and the Property in accordance with the terms and conditions of this Agreement. 5. Successors and Assisms. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Developer and their respective successors and assigns. The terms and conditions of this Agreement similarly shall be binding upon the Property and shall run with title to the same. 6. Applicable Law. This Agreement shall be governed by and construed In accordance with the laws of the State of Florida. 7. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Commission. 8. Entire Aereement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between the City and Developer as to the subject matter hereof 9. Severabilitv. If any provision of this Agreement shall beheld to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 10. Effective Date: Termination. This Agreement shall become effective upon approval by the City Commission and execution of this Agreement by both parties hereto. However, the development rights set forth herein shall only become effective at such time that the Developer closes on the Kingsbury Property. If Developer fails to purchase the Kingsbury Property within six (6) months of the City Commission approving this Agreement, this Agreement shall automatically terminate and the parties shall no longer have any rights hereunder. 11. Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida. For purposes of recording this Agreement, a legal description of the Building 17 Site shall be provided by the Developer when said site is created pursuant to City Code and attached to this Agreement in order to adequately represent the real property that is subject to this Agreement. 12. RelationshiD of the Parties. The relationship of the parties to this Agreement is contractual and Developer is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner, which would indicate any such relationship with the other. Developer's Agreement City of Winter Springs and Capital Green I, LLC - 3 - 13. Sovereism Immunitv. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under the state and federal law. 14. City's Police Power. Developer agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 15. Interoretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. 16. Third-Party Ri2hts. This Agreement is not a third-party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 17. Soecific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by a suit in equity. 18. Attornev's Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. 19. Develooment Permits. Nothing herein shall limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Agreement. The failure of this Agreement to address any particular City, County, State and/or Federal permit, condition, term or restriction shall not relieve Developer or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Developer is in breach of any term and condition of this Agreement. [SIGNATURES FOLLOW ON NEXT PAGE] Developer's Agreement City of Winter Springs and Capital Green I, LLC -4- IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY OF WINTER SPRINGS >>1 " . -- ~ , . 't . ~.. . < . ~..... !!t '\'. J , J'''''' "f ......,," '--'" \, , " \ -' " _,- ...C', rJJ1, 'II ~ l,I"'~"" ,.11 f#t.f'l. . J"!"!! .f \,::,':' "fit'- -"'" VA t. :::~,.. ; tit :':/,'I ".'/~ ", '" "'" ... -.,..._"1 / ,~) ..~, I ..0#..... ~ ~ :~ ;'""') : r:'r; C1TY SE"AJ, ,:' ./'" ,; APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida, only. -y ~ CJI ,t; Dated: I~/ ~S- ~w<1 "- 'J :1- '. " ; ,; :Jt~' , ~ :., -I _"';;', t ~ " ! . ~ , ) '\\\\'\l~"'''''''''-" Developer's Agreement City of Winter Springs and Capital Green I, LLC -5- ~AU~~.~ Si~ture of Witness I~a. t 11.-1 ~ (' Y\ g~ a..-rdn ~ r Printed Name of Witness Signed, sealed and delivered in the presence of the following witnesses: J)JftUMfld. si~;;i//,~ne~i rid ancL Printed Name of Witness STATE OF .5oU T f/ e,q-/Z() t.Z7V ;q COUNTY OF t'Je7l.K E L 8/ The foregoing instrument was acknowledged before me this J. S' day of ~ ~toj, eA , 2005, by John H. Disher, Vice President of ESD Properties, Inc., managing member of Capital Green I, LLC, A Georgia Limited Liability Company on behalf of said developer. He is personally known to me or produced as identification. ti.." ...... ,-;:;; " -' ~ !1 .: 'I' '...,.::../', ~{/~ ~ J/~ (No Public Sigtll!ture A A. -r vrl,'l-h . IJ~ tS~S 1 ~ (Prillt Name) ("" J r Notary Public, State of .,J ou-i...,., C(IWLtUIt Commission No.: My Commission Expires: . IIrcommJlllOft bpi" 7-24--2011 (NOTARY SEAL) I, ,r, '~J ... . ."-~:. ~~ --. - ~:_.~ ~:- #\.. ,,' Developer's Agreement City of Winter Springs and Capital Green I, LLC - 6- EXHIBIT IA LEGAL DESCRIPTION (PREPARED BY LDCHRANE I A PORTION OF THE NORTH 2D9.00 FEET OF THE EAST 358.00 FEET OF BLDCK "8" THAT IS ON THE fAST SIDE OF WlEDO-SANFORD ROAD (A.K.A. STATE ROAD -fJ.4J. ON THE WEST SIDE OF BRANTlEY AVENUE (A.K.A. TVSICAWlLLA ROAD J, ON THE stJUTH SIDE OF PLATTED ROAD (A.K.A. FIRST STREET J OF O.R. I/ITCHELL'S SUlNEY OF THE LEVY GRANT ON WE .JESSlJP. ACCORDING TO THE PLAT THEREOF REctJRDEO IN PLAT BlJOK I, PASE 5, OF THE PUSUC RECORDS OF SEIlINOLE COONTY, Fl.DRIDA. AU BEING IIORE PARTICULARl.Y AS FOUDWS: COIII/ENCE AT THE NORTHEAST CORNER OF BLDCK "S", D.R.I/ITCHELL'S StINEr OF THE l..E.VY GRANT ON LAXE JESSUP, AS RECORDED IN PLA T BaoK I, PN;E 5, PUBUC RECORDS OF SElllNOLE CWNTY FLORIDA, SAID MNT ALSO BEING THE INTERSECTION OF THE SOUTH RlSHT OF WAY UNE 01 PLA TTEO ROAD (A.K.A. FIRST STREETJ AND BRAJlTLEY AVENUE r A.K.A. TUSlCAW/U.A !!IJ!!. J OF SAID D.R.IIITCHEU'S SU/NEY OF THE LEvr GRANT ON J.AJCE JESSUP, THENCE RUN NTI'23'56 W, ALDNG SAID SOUTH RIGHT OF WAY UNE OF PLATTED ROAD (A.X.A. FIRST STREET J AND THE. NORTH UNE OF BLOCK "B.~, A DISTANCE OF J58.00 FEET FOR THE POINT OF BE6/NfflN6i..THENCE DEPARTING AFORESAJD SOOTH RIGHT OF wAY UNE AND THE NORTH UNE OF BLDCK "8" RUN SJO"04:sB"W A DISTANCE OF tDB.!U FEET, THENCE. RUN srrt;j'S,"E A DISTANCE OF 1/2.34', THENCE RUN NTB-J6'09"E A DISTANCE OF t!tH.75 FEU TO A POINT ON THE AFOREMENTiONED SOUTH RIGHT OF WAY UNE AND THE NORTH'UNE OF BUJCK '8', THENCE RUN NT/.2J'56"W AlJJNG SAJD SOOTH RIGHT OF WAY UNE AND THE NORTH UNE OF BLDCIC "s" A DISTANCE OF 70.75 FEET 1D THE POINT OF BEGINNING. . CONTAINING O..co ACRES. (18.745 SaJARE FEET J.IIDRE OR LESS. '... EXHIBIT I~